Bolam v Friern Hospital Management Committee

Bolam v Friern Hospital Management Committee
Court High Court
Citation(s) [1957] 1 WLR 582
Keywords
Reasonable care

Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 is an English tort law case that lays down the typical rule for assessing the appropriate standard of reasonable care in negligence cases involving skilled professionals (e.g. doctors): the Bolam test. Where the defendant has represented him or herself as having more than average skills and abilities, this test expects standards which must be in accordance with a responsible body of opinion, even if others differ in opinion. In other words, the Bolam test states that "If a doctor reaches the standard of a responsible body of medical opinion, he is not negligent".

Facts

Mr Bolam was a voluntary patient at Friern Hospital, a mental health institution run by the Friern Hospital Management Committee. He agreed to undergo electro-convulsive therapy. He was not given any muscle relaxant, and his body was not restrained during the procedure. He flailed about violently before the procedure was stopped, and he suffered some serious injuries, including fractures of the acetabula. He sued the Committee for compensation. He argued they were negligent for (1) not issuing relaxants (2) not restraining him (3) not warning him about the risks involved.

It is important to note that at this time juries were still being used for tort cases in England and Wales, so the judge's role would be to sum up the law and then leave it for the jury to hold the defendant liable or not.

Judgement

McNair J at the first instance noted that expert witnesses had confirmed, much medical opinion was opposed to the use of relaxant drugs, and that manual restraints could sometimes increase the risk of fracture. Moreover, it was the common practice of the profession to not warn patients of the risk of treatment (when it is small) unless they are asked. He held that what was common practice in a particular profession was highly relevant to the standard of care required. A person falls below the appropriate standard, and is negligent, if he fails to do what a reasonable person would in the circumstances. But when a person professes to have professional skills, as doctors do, the standard of care must be higher. "It is just a question of expression," said McNair J.

"I myself would prefer to put it this way, that he is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. I do not think there is much difference in sense. It is just a different way of expressing the same thought. Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view. At the same time, that does not mean that a medical man can obstinately and pig-headedly carry on with some old technique if it has been proved to be contrary to what is really substantially the whole of informed medical opinion. Otherwise you might get men today saying: "I do not believe in anaesthetics. I do not believe in antiseptics. I am going to continue to do my surgery in the way it was done in the eighteenth century." That clearly would be wrong."[1]

In this case, the jury delivered a verdict in favour of the defendant hospital. Given the general medical opinions about what was acceptable electro-shock practice, they had not been negligent in the way they carried out the treatment. That passage is quoted very frequently, and has served as the basic rule for professional negligence over the last fifty years.

Explanation

It is important to remember that the "Bolam test" is just one stage in the fourfold test to determine negligence. First, it must be established that there is a duty of care (between a doctor and patient this can be taken for granted). Second, it must be shown that the duty of care has been breached. This is where the Bolam test is relevant, because falling below the standard of a responsible body of medical men means that person will be considered negligent. But in addition, third it must be shown that there was a causal link between the breach of duty and harm. And fourth, it must be shown that the harm was not too remote.

The Bolam test does not vary significantly in professional negligence litigation, but it causes greater difficulty for the courts in medical negligence than in claims against, say, a lawyer or an accountant, because of the technical issues involved. The problem is as follows:

All these legal issues can only be addressed by medical opinion because, by its nature, medical practice has not reached the stage of scientific reliability where such questions can be answered with certainty. In a dispute about a will, for example, it might be alleged that because a solicitor delayed implementing a change to an existing bequest, an intended beneficiary was denied the expected outcome when the testator unexpectedly died. Here, efficient action by the solicitor changes the will and matches everyone's expectations. The difference between a quantified bequest and no bequest is easy to measure. But it has been difficult for the law to achieve any real degree of consistency in the medical field because assessing whether the standard of care has been met and issues of causation depend to such a marked degree on the opinions of the medical profession itself.

For these purposes, the evidence produced by the claimant must satisfy the burden of proof which, in a civil case, is the balance of probabilities. Hence, the burden is satisfied and negligence is proved if there is greater than 50% chance that the claim as argued is correct, i.e. the duty was owed and the breach caused the injury. So the question of law is based on assessing the medical chances of recovery. If, given proper treatment, the claimant's chances of avoiding the current level of injury were anything less than 50%, he or she will not be awarded any damages at all. There is no right to damages for the loss of the prospect of recovery if the chance of that recovery was less than probable.

Legal developments

[This needs to be updated in regard of the 2015 Montgomery case ruling, that shifted the emphasis from what a body of medical opinion would think, to what a reasonably informed patient would think. I'm not legally qualified to rewrite the piece, but here are Google links to the case: https://www.google.co.uk/search?q=montgomery+ruling&hl=en-GB&gws_rd=cr,ssl&ei=IcscWIerHMmZgAa8_LzwBg ]

The law distinguishes between liability flowing from acts and omissions, and liability flowing from misstatements. The Bolam principle addresses the first element and may be formulated as a rule that a doctor, nurse or other health professional is not negligent if he or she acts in accordance with a practice accepted at the time as proper by a responsible body of medical opinion, even though some other practitioners adopt a different practice. In addition, Hedley Byrne & Co. Ltd. v Heller & Partners Ltd. [1964] AC 465 created the rule of "reasonable reliance" by the claimant on the professional judgment of the defendant.

"Where a person is so placed that others could reasonably rely upon his judgment or his skill or upon his ability to make careful inquiry, and a person takes it upon himself to give information or advice to, or allows his information or advice to be passed on to, another person who, as he knows or should know, will place reliance upon it, then a duty of care will arise."[2]

Because of the nature of the relationship between a medical practitioner and a patient, it is reasonable for the patient to rely on the advice given by the practitioner. Thus, Bolam applies to all the acts and omissions constituting diagnosis and consequential treatment, and Hedley Byrne applies to all advisory activities involving the communication of diagnosis and prognosis, giving of advice on both therapeutic and non-therapeutic options for treatment, and disclosure of relevant information to obtain informed consent.

Misfeasance

Where it can be shown that the decision-maker was not merely negligent, but acted with "malice", the tort of "misfeasance in public office" may give rise to a remedy. An example might be a prison doctor refusing to treat a prisoner because he or she had previously been difficult or abusive. Although proof of spite or ill-will may make a decision-maker's act unlawful, actual malice in the sense of an act intended to do harm to a particular individual, is not necessary. It will be enough that the decision-maker knew that he or she was acting unlawfully and that this would cause injury to some person, or was recklessly indifferent to that result.

Conclusions

Overall the question of professional negligence is problematic because, to a certain degree, each profession sets its own standards and may to that extent be considered "self-regulating". The arguments are complex. The difficulty for the law is to strike a balance between the interests of the professionals and those who rely on them. There is a form of legal pendulum that can swing either way depending on the policy issues involved but this is sometimes of little comfort to those who feel that they have not found justice in the legal system. In cases such as Whitehouse v Jordan the court holds that the doctor was not at fault because he did what other doctors might have done in the same circumstances. Thus, the claimant was brain damaged and that damage was caused by what the doctor did, but the doctor was not legally at fault. In one sense, this may be considered fair to the doctor who did exactly what many other doctors would have done. But the baby's brain damage is just as bad no matter what the cause of it, and it seems unfair that the difference between obtaining damage and being denied any remedy should depend on the court's application of negligence. Many use this type of case to argue in favour of a system of no-fault compensation such as that introduced in New Zealand in 1972. The question of no-fault compensation in the UK was considered by the Royal Commission on Civil Liability and Compensation for Personal Injury (the Pearson Commission), which reported in 1978. Although the Report was critical of the existing system, its terms of reference prevented it from recommending a comprehensive no-fault scheme. Instead it recommended an extension of the existing social security scheme to give greater assistance to victims of industrial injuries and to include the victims of road accidents. The possible extension of misfeasance in public office to include situations in which potentially dangerous individuals are released into the community complicates the duties of the professions involved. Given that medical professionals are already held out as having more reliable diagnostic and treatment skills, any obvious indifference as to whether those released will cause problems may expose the professionals to a new source of liability (see Mason and Laurie: 2003).

See also

Notes

  1. ↑ [1957] 1 W.L.R. 582, 587
  2. ↑ [1964] AC 465, at ???

References

External links

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